FEDERAL COURT OF AUSTRALIA
Oknalux Pty Ltd v Wilczynski [2022] FCA 1152
File number(s): SAD 188 of 2020 Judgment of: O'SULLIVAN J Date of judgment: 29 September 2022 Catchwords: PRACTICE AND PROCEDURE – interlocutory application seeking orders that the docket judge recuse himself from these proceedings on the basis of bias – whether the judge has prejudged the case against the applicants, or acted with such partisanship or hostility as to show that he had a mind made up against the applicant and was not open to persuasion in favour of the applicant – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide – whether the allegation of bias is distinctly made and clearly proved – whether cogent evidence of bias was provided – where no basis to support allegations of actual or apprehended bias found – application for recusal refused Legislation: Evidence Act 1995 (Cth), s 131(1)
Federal Court of Australia Act 1976 (Cth), s 37AG
Uniform Civil Rules (SA) 2020, rr 131(2), 131.1(1)
Cases cited: Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824
Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507
R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22, (1953) 88 CLR 100
R v Rich (Ruling No 21) [2009] VSC 32
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1990) 81 FCR 71
Zaltni v Minister for Immigration and Multicultural Affairs [2000] FCA 399
Division: General Division Registry: South Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 42 Date of hearing: 30 August 2022 Counsel for the Applicants: Ms M Hamlyn Solicitor for the Applicants: PGC Legal Counsel for the Respondents: The Respondents appeared in person ORDERS
SAD 188 of 2020 BETWEEN: OKNALUX PTY LTD
First Applicant
ALICJA MATEJKO
Second Applicant
AND: EWA WILCZYNSKI
First Respondent
JOSEPH WILCZYNSKI
Second Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF ORDER:
29 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The respondents’ interlocutory application filed 29 April 2022 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’SULLIVAN J:
INTRODUCTION
On 29 April 2022, the respondents (Ms Wilczynski and Mr Wilczynski respectively) filed an interlocutory application seeking, amongst other things, that I recuse myself from hearing this matter.
The respondents are self-represented. Ms Wilczynski requires the services of a Polish interpreter. Mr Wilczynski is able to communicate well in English.
The application contains 17 paragraphs. Of those, only paragraphs 1 and 2 are matters which are properly the subject of an interlocutory application. As to the balance of the orders:
(1)The orders sought in paragraphs 3, 9, 11, 12, and 15 are, so far as can be determined, directed…
Keep reading for free
Create a free CaseChat account to read Oknalux Pty Ltd v Wilczynski and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2022] FCA 1152
- Decision Date
CaseChat Overview and Summary
The Court considered the submissions made by the respondents, including affidavits sworn by Joseph Wilczynski. The Court noted that the seventh Wilczynski affidavit, which referred to offers made at a mediation, was initially suppressed to prevent prejudice to the proper administration of justice. However, after the applicants provided a redacted version of the affidavit, the Court allowed it to be read. Despite the respondents' objections to the redactions, the Court concluded that the evidence did not support the contentions of actual or apprehended bias. The Court found that judges do not select their cases and litigants do not choose their judges, and any objection to a judge must be based on a substantial ground.
The Court's reasoning was grounded in the principle that judges have a duty to exercise their judicial functions when their jurisdiction is invoked and they must hear cases assigned to them unless there is good cause for recusal. The Court found no basis to support the allegations of actual or apprehended bias and thus refused the application for recusal. The Court concluded that neither contention of actual or apprehended bias was made out, and the application was dismissed.
The Court's final order was that the respondents' interlocutory application filed on 29 April 2022 was dismissed. The Court further ordered that the respondents comply with the Court’s orders, reinforcing the need for adherence to procedural directives in legal proceedings.
Orders
Orders of the court
1. The respondents’ interlocutory application filed 29 April 2022 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Their Honours continued: at [19]Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.The parties’ submissions and consideration In support of their application, the respondents read and rely upon:(a)The affidavit of Joseph Wilczynski sworn and filed on 21 March 2022 (first Wilczynski affidavit); and(b)The seventh affidavit of Joseph Wilczynski sworn and filed on 10 August 2022 (seventh Wilczynski affidavit). When the seventh Wilczynski affidavit was filed, a concern was raised by a Registrar of the Court that the seventh Wilczynski affidavit may contain matters arising out of a mediation between the parties held in the Supreme Court of South Australia earlier this year. On that basis, when the seventh Wilczynski affidavit was filed, pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth), I ordered that the affidavit be placed in a sealed envelope and be suppressed on the grounds that it was necessary to prevent prejudice to the proper administration of justice. When the matter returned to Court on a case management hearing on 30 August 2020, I was informed by the applicants that the seventh Wilczynski affidavit refers to offers made at the mediation. The applicants sought and were granted the opportunity to make written submissions as to whether the seventh Wilczynski affidavit should be read in full. On 5 September 2022, the applicants provided a redacted copy of the seventh Wilczynski affidavit and advised my Chambers that they had no objection to the redacted version being read on this application. The respondents objected to the redactions. In an email sent to my Chambers on 7 September 2022, Mr Wilczynski asserted he had not signed any confidentiality undertaking at the mediation. Section 131(1) of the Evidence Act 1995 (Cth) provides that subject to the exception in s 131(2), none of which are presently relevant, evidence of settlement negotiations is not admissible. Further, r 131.1(1) of the Uniform Civil Rules 2020 (SA), which applies to South Australian Supreme Court mediations, provides:(1)Subject to the following subrules, communications between the parties or between a party and a facilitator that are part of an alternative dispute resolution process must be treated as confidential and not disclosed to the Court. Although the rule applies to State Courts, I have no hesitation in concluding that the import of the rule is to maintain confidentiality in general. That is because the whole basis of mediation is confidentiality, subject of course to specific exceptions.